Latest revelations on FBI NSL misuse raise fresh questions

More evidence is uncovered of the FBI's abuse of National Security Letters. …

The Federal Bureau of Investigation has incurred harsh criticism for what Sen. Patrick Leahy (D-VT) last month described as its "widespread illegal and improper use of national security letters," or NSLs, which allow law enforcement agencies to obtain customer records from banks, credit agencies, and Internet service providers without court order. Earlier this week, internal FBI documents released by the Electronic Frontier Foundation shone a spotlight on one such improper request—a request that, ironically, had been cited by FBI Director Robert Mueller as evidence that the agency required broader administrative subpoena powers.

In July of 2005, the Bureau was investigating Magdy Mahmoud Mostafa el-Nashar, a one-time associate of the men who had recently bombed London's public transit system. (It was soon determined that el-Nashar had not been involved in the plot.) According to a 2007 summary of the investigation, an agent was sent with a grand jury subpoena to recover records from North Carolina State University at Raleigh on July 13.

But then, it appears, something odd happened."After receiving the subpoena," the documents recount, the agent "served the subpoena and had some records in hand when he received a call" from his supervisor, who "had been notified by FBIHQ... that we were not to utilize a Grand Jury subpoena and that we must obtain a National Security Letter (NSL)." The agent apparently returned the records (though there appears to be some confusion about whether the agent had actually finished serving the subpoena), and the Bureau's Charlotte office got to work drafting an NSL.

But as EFF attorney Kurt Opsahl explains to Ars, National Security Letters have never covered educational records. "NSLs cannot get anything but 'subscriber information and toll billing records information, or electronic communication transactional records.' If the FBI was using it in new ways beyond this scope, it seems implausible that this was a genuine legal theory on the interpretation of the law."

The university's lawyers stuck with the more traditional interpretation: They declined to provide student records pursuant to the NSL. The FBI then went back for another grand jury subpoena, obtaining the records sought on July 15.

Making lemonade from NSL lemons

But the delay had provided a useful anecdote to FBI Director Robert Mueller, who seized on the university's refusal to honor the NSL as evidence that the Bureau required broader powers. A July 21 e-mail to the North Carolina office explained: "The director would like to use this as an example tomorrow as to why we need administrative subpoenas's [sic] to fight the war on terror. In particular, he would like to know how much extra time was spent having to get the Grand Jury subpoena."

Several days later, Mueller cited the incident before the Senate Judiciary Committee, though omitting any mention of the first subpoena. "The person has expertise in chemistry that would enable that person to construct these bombs," Mueller said in his testimony. "We went to the university with a national security letter. They declined to produce the documents pursuant to a national security letter. We had to, because there was a case that was aligned to it, we had to go back with a grand jury subpoena.... We should've been able to have a document, an administrative subpoena that we took to the university and got those records immediately."

As an FBI spokesman today told Ars that investigators had indeed "requested records they may not have been entitled to obtain with a National Security Letter" and that "upon learning of the potential misuse of an NSL, the FBI General Counsel's office directed the FBI to self report a potential Intelligence Oversight Board violation." But the spokesman could not say why the incident was finally reported only in early 2007, well beyond the 14-day window within which overseers are supposed to be notified of any possible improprieties.

Rep. Jerrold Nadler (D-NY), who has sponsored legislation to limit the use of NSLs, pressed FBI General Counsel Valerie Caproni on the EFF revelations during a House Judiciary Commmittee hearing Tuesday. Caproni, who argued in her testimony that internal reforms had made a legislative remedy unnecessary, said it was "unclear" both why headquarters had sought an NSL instead of relying on a grand jury subpoena or separate procedures available under the Patriot Act, but speculated that it may have been the result of a "miscommunication."

But EFF's Opsahl finds it implausible that FBI attorneys could have been confused about the scope of NSL authority. "This is not a legal gray area," he told Ars. "This is not a matter of debate." The decision becomes still more puzzling given that a more legally appropriate means of obtaining the documents was already being pursued. Could the use of the NSL have been intended to probe the boundaries of the Bureau's authority, to see whether the university would comply? Or, alternatively, to provoke a refusal that could be used to demonstrate that law enforcement agencies were hamstrung, and required more tools? Or was it simply an instance of innocent confusion about the correct legal means to use? We're unlikely to find out unless Congress decides to probe further.

As far as Rep. Nadler is concerned, however, the need for more robust statutory checks on NSLs is already clear. On Tuesday, his office relayed to Ars the congressman's view that the "disclosure from EFF only further demonstrates the need for statutory changes to the underlying NSL authority. The FBI's assurance to simply 'trust them' fails to uphold the rule of law. Self-policing has proven time and again to be both undemocratic and ineffective. We need to bring the NSL authority in line with the Constitution, enhance checks and balances, and, in doing so, better protect our national security."